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John Doe v. Franco Productions, et al.

Court holds that those engaging in web site hosting activities are immunized by the CDA from liability arising out of their involvement, via those activities, in the dissemination or publication of information originating from third parties.

Plaintiffs are intercollegiate athletes who, without their permission, were video taped in varying states of undress in lockers, showers and rest rooms. The resulting video tapes were sold by varying means, including on web sites hosted by defendants' "successors," on which web sites were also displayed still photographs of plaintiffs obtained from the video tapes. Defendants' "successors" were not accused either of creating the videotapes in question, or the objectionable content depicted on the web sites at issue. Rather, in the third amended complaint filed in this action, defendants were alleged to have both hosted these web sites, and, apparently, provided "the template or architecture of the web sites," tools to assist in "photo utilization" and "materials related to credit card transactions necessary to the sale [of] the illegal videotapes."

In their third amended complaint, plaintiffs charged defendants' "successors" with "intrusion into plaintiffs' seclusion" and "public nuisance." On defendants' motion, the court dismissed these claims, holding that the actions of defendants' "successors" were immunized from such liability under 47 U.S.C. §230(c). Section 230(c)(1) provides that "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." This provision, said the court, "creates federal immunity against any state law cause of action that would hold computer service providers liable for information originating from a third party." Such service providers, concluded the court, include those engaged in web hosting activities. Said the court:

The court reiterates its previous holding, finding GTE, and now similarly PSINet, service providers whose immunity or status as service providers under the CDA is not vitiated because of their web hosting activities, whether viewed in combination with their roles as service providers or in isolation. Immunity under the CDA is not limited to service providers who contain their activity to editorial exercises or those who do not engage in web hosting, but rather, "Congress ... provided immunity even where the interactive service provider has an active, even aggressive role in making available content prepared by others." Blumenthal v. Drudge, 992 F.Supp. 44, 52 (D.D.C. 1998). ... Plaintiffs do not allege that GTE or PSINet themselves sold or offered for sale the videotapes at issue. Plaintiffs simply allege that GTE and PSINet, as web hosts, provided a medium through which others could sell or offer for sale the videotapes at issue. However, by offering web hosting services which enable someone to create a web page, GTE and PSINet are not magically rendered the creators of those web pages. See 47 U.S.C. 230(c)(1). As such, plaintiffs' new characterization of GTE and PSINet as web hosts neither prevents these defendants from being deemed service providers protected by immunity under the CDA nor makes them content providers unprotected by the CDA's immunity.

The court accordingly dismissed plaintiffs' invasion of privacy and public nuisance claims. The court also rejected plaintiffs' attempts to hold defendants liable for the dissemination of these videos on theories that plaintiffs were third-party beneficiaries to defendants' agreements with the web site's creators, and that defendants' "successors" were guilty of eavesdropping in violation of the ECPA.

The full text of this decision can be found on a web site maintained by Eric Goldman, Esq.